Miscellaneous

Discussions of US public policy which include Jews who care about Jewish law often operate under one of two false premises. Some Jews assume the privilege of advocating for whatever policies appeal to their own sense of morality, independent of what Judaism may say. Such Jews might add that the religion speaks to them, but need not color their recommendations for an America populated largely by non-Jews.

The problem with this stance is that Jewish law in fact legislates for non-Jews as well as Jews, although in fewer areas. Actively promoting or encouraging others’ flouting laws that the religion thinks applies to them does not seem internally consistent with such Jews’ personal adherence to the religion. To take a fairly simple example, since Judaism is opposed to idol worship by any humans, there is no clear or obvious way that a Jew might feel comfortable promoting a public policy that approved of worshiping idols even by non-Jews.

Let me hasten to add that Judaism’s opposition to a practice does not necessarily obligate Jews to work to prohibit that practice. When a society decides not to police or prosecute a certain type of wrong, there is room for Jews to accede to that (although some authorities, such as Maimonides, would seem to think that such a decision is illegitimate for the non-Jewish society itself). The questions of when Jewish law requires eradicating wrongful practices from our midst is a complex one, but is not our question here. We are focused on what is more problematic, Jews’ agreeing that an act that runs counter to Jewish law and values is actually an absolute right of members of our society.

If that first camp wrongly or mistakenly allows themselves too much latitude to shape their views of public policy, a second camp errs the other way, assuming that all Jewish values should ideally be incorporated in American life. We can imagine Jews taking political positions in favor of what is called “family values,” for example, because Jewish law promotes such values for Jews. The hole in the thinking, however, is that Jewish law does not legislate such values and practices for non-Jews. It might be a good idea, but a proponent of such a view would have to prove it independent of Jewish values, since those were stated for Jews, not for all of humanity.

For another example, were there to be an anti-usury movement in this country, there would be no need for Jews to join, since Jewish law’s opposition to taking interest is an internecine matter, a question of how Jews treat each other, not of the morality of lending at interest.

With this background, I think it is easier to understand why I had always assumed that Jewish law required Jews to oppose the impression that abortion was an acceptable alternative, a legitimate choice. Since the Talmud clearly reads the Torah as proscribing abortion for non-Jews as much as for Jews (indeed, the laws for non-Jews are more restrictive), the most liberal a Jew could be on this issue was to accept the need to refrain from prosecuting such acts. Certainly, I thought, any Jew sensitive to Jewish law or values could not be in favor of abortion rights.

It was with surprise, then, that I came across a comment in Minchat Chinuch (a nineteenth-century elucidation of the Torah’s commandments by R. Joseph Babad) that opens the door to exactly such a position. In discussing the laws of murder (Mitsvah 34; p. 186 in vol. 1 of the Machon Yerushalayim edition), he assumes that a nefel, a baby born so prematurely or with such defects that it cannot live, would not be included in the Torah’s prohibition of murder by non-Jews.

In introducing that comment, he writes; “And it seems to me that specifically for a fetus is [a non-Jew] killed, for it is able to go out into the world and live, but if it was born as a nefel, and cannot live…”

Minchat Chinuch does not clarify his comment, but it is at least plausible to argue that he understood the abortion prohibition to apply only to those fetuses that are already viable. If so, the American standard might fall within the parameters he assumes, and not violate Jewish law.

I grant there are at least three grounds upon which to disagree. First, Minchat Chinuch might have meant only to exclude a nefel from the prohibition, since it will never be viable. A fetus, which will likely become viable if we do not interfere with its gestation, might not be included in that exception. It would, however, allow abortion of any fetus with such significant issues that the doctors can be sure the fetus will never come to viability.

Second, Minchat Chinuch is only one authority, and others clearly extend the Talmudic prohibition of abortion to all fetuses. R. Moses Feinstein, for example, assumed that abortion was murder, and that the Jewish right to abort babies to save the mother was a leniency granted by Jewish law. That, too, is not the majority position, but it counterbalances this comment of Minchat Chinuch’s.

Third, Jews might oppose Roe v. Wade for other policy reasons, such as the impact they see it having on society and its sense of the sanctity of human life. Even if Jewish law does not oppose the types of abortions US law currently condones, reasonable people might see it as wrong or damaging to society.

I am not writing, then, to claim that Jews should have no problems with Roe. Rather, I am pointing out a source that might open up the option of not opposing Roe, as had seemed to me required until now. This comment of the Minchat Chinuch seems useful and interesting because it opens up room to allow that, at least in its most obvious aspects, Roe is not an example of American society parting company with the value system of Judaism.

The following Mishna from Pirkei Avot is well known and has been a rallying cry for Jewish fundraisers for probably millennia. I bring two different commentators on this Mishna. Each one reads the Mishna in a different way. First look and see how you would read it before you go on to see how the Me’iri and the Maharal read the Mishna.

Values of our Ancestors: Chapter II Mishnah 5

Hillel says: Do not separate yourself from the community, and do not be secure of who you are until the day of your death. Do not judge your friend until you have been in his place.

Rabbi Menachem HaMeiri (1249-1316) on the social reasons for community identification

Do not separate yourself from the community—rather join them in their times of trial. This means that even though it is possible that one can save one’s self from the calamity without the help of others, his intention should be for the salvation of the whole community, and he should include himself among them. If he does not do this his punishment will be that he will witness the community’s salvation fast like a deer, (Proverbs 6:5) but he will be ensnared in the pit of his wickedness, as the sages have said “Anyone who does not join with the community in times of trouble, will never see the community consoled.” (Talmud, Ta’anit 11a), as it is written: Rejoice with rejoicing all you that have mourned for her. (Isaiah 66:10) Similarly: [Mordecai said to Esther ] …Relief and deliverance will come to the Jews from another quarter, while you and your father’s house shall perish. (Esther 4:14)

It’s apparent to me that the Me’iri is reading the Mishna as a warning against a particular reaction to a particular situation. It may be natural to cut and run when the community is in trouble, but that is the very time one needs to remain with the community and not be tempted to leave even if one is able to save his own skin. He limits the scope of the Mishna by relegating it to a particular circumstance.

The Maharal of Prague (1525-1609) from his commentary on Values of Our Ancestors Derech Hachayyim—A philosophical understanding why community is valued over the individual.

Why is the community of such value?

Hillel has also asserted the special quality of community which, as opposed to the individual, is more important. That is why he says: Do not separate yourself from the community. For the community which is a collective has more permanence, as we have explained, because a community has a more resilient existence. Therefore one who separates from the community is separating from the thing that is more deeply alive.

Furthermore, the community is all, and it has the power of all. Therefore one who separates from it, removes himself from all, and thus lives on the periphery. On the periphery, he is considered as insignificant as vapor—a thing that is outside the collective.

The Maharal, on the other hand, sees the Mishna as making a philosophical statement about the nature of community. Do not separate yourself from the community means do not cut yourself off from life. It seems the Maharal is asking why does Hillel say the statement in the negative and not formulate it by saying “Join the community”. The Maharal teaches that we are born into community, that it is our natural state, for communities generally survive the individual. They were there before and they will be there afterward. To separate yourself is to remove yourself from its life force, ki haklal zeh hakol. (The Community is all.)

We are all familiar with the famous philosophical conundrum of reconciling free will with divine omnipotence (and omniscience). The religious personality’s encounter with illness shares a certain tension with this eternal debate, though more poignant in its application to some of the most dramatic moments of our lives. Here too the inherent friction emerges between faith in Hashem’s involvement in our lives and man’s facility to be proactive in his own destiny.

In sickness man faces his own mortality, and intervention is a frank struggle directly with fate. Perhaps the object here is to seek divine intervention. After all, Hashem is the source of our troubles and ultimately determines our redemption. Inserting the middle man of the doctor might only serve to obscure this point and can easily be construed as rejecting divine providence.

This viewpoint seems to be supported by the Ramban in his commentary on the Torah (Vayikra 26:11) where he describes a perspective of the righteous in the age of prophecy to recognize the correlation between sin and sickness and seek out prophets instead of doctors when in need of healing. Despite this, at some stage in history man became accustomed to relying on medicine, at which point God acquiesced to the practice. Based on this flawed state to which we are now adjusted the medical practitioner is given permission by the Torah to practice his expertise. The level of Ramban’s disappointment in the patient who seeks medical intervention even in our current epoch is not clear.

To rely on medicine according to this point of view is a demonstration of weakened faith. In principle, we should seek personal resolution of our ills directly from Hashem. The Ramban concludes his thought with, “Though concerning the wishes of Hashem, man’s ways would have no business with doctors.”

This may not sit well with today’s faithful individual. We generally feel the need to stay healthy to serve Hashem and associate that with a responsibility to follow doctors’ orders. How then can this be a lack of faith? We see no contradiction between our reliance on Hashem for healing and our seeking the natural means by which He can clothe His will to provide that healing. Not to mention the horror stories we’ve heard about religious fundamentalists (mostly Christian, though not unheard of in the Jewish world) refusing medical care for their own children.

One critic of the Ramban’s viewpoint that we find among the gedolim of the modern age is that of Baruch Halevi Epstein, the Torah Temima. In his notes on Devarim 22:2 he writes about the Ramban, “I find his words uncomfortable for several reasons and I have found him no company in any of those statements and if I would propose to discuss this further the discussion would go very long and here is not the place to drag it out.”

R. Epstein points out that the Ramban is at odds with the perspective, not surprisingly, of Maimonides that medicine is actually a mitzvah. In his commentary on the mishna in Nedarim (4:4) the Rambam explains the reason that a person who swears off benefit from another person may still receive medical treatment from him because it is a mitzvah covered by the injunction to return lost objects. In this case one returns a man’s own body to him. The Torah Temima remarks that the Ramban must not have seen these words of the Rambam or he surely would have addressed them directly.

The Rambam’s grounding of the mitzvah of refuah in returning lost objects was not the only possible source. The gemara in Sanhedrin describes neglecting to save a person’s life if you see them drowning or in other dangerous situations as transgressing the mitzvah of “…do not stand upon the blood of your fellow…” (Vayikra 19:16). Why then skip over this obvious source for the obligation to heal and instead take the further leap of tying the mitzvah to returning lost objects?

Perhaps there is a reference here to a more hidden nature to healing practices. Often medicine is an enigma to the patient, who finds himself completely in the dark about how to return his own health. Here the doctor reveals the command over one’s own body that has been lost in obscurity. The danger might be very real and at the same time quite inexplicitly present. In the case of drowning, no secret is revealed. What must be done is obvious.

This touches upon the reason that medicine and faith are intertwined in the first place. Since the means of help are not explicit, the patient must trust, have faith, in the doctor. Thus the doctor begins to infringe upon the province, of the One and only deserving recipient of our faith. Now we begin to understand the Ramban’s antipathy towards that state of affairs.

But let’s think about a practice that might be considered medical, yet the means are much more explicit than we have imagined so far. A man who aids his fellow with an open wound by stemming the flow of blood might quite obviously be called not standing ‘by the blood of your neighbor’. What if the severity of the situation calls for applying a tourniquet even though this implies that you are applying more specialized training? What about washing the area and applying disinfectant, keeping common medical knowledge of germ theory in mind?

It appears that as certain medical practices become more evident as beneficial they approach the explicitness of the act of saving a man from drowning, even if the skill to apply them might require specialized training. Perhaps this is part of the historical development that the Ramban describes in our attainment of medical practice as a Torah condoned activity.

One can easily imagine then that the earliest stages of medical development would have been much less religiously appealing. Particularly since there must have been a much less discernible distinction between the limited faith in the mysterious, and perhaps ritualistic, healer and one’s true faith in Hashem. Later, as the cause and effect relationship between practices became more familiar, the medical response followed a progression towards greater acceptability. A doctor who simply initiates an almost perceptibly mechanical process of healing is no match for faith in the One who determines the outcome of all processes.

That is not to say that there is no more danger to the religious perspective. The dynamic is to some extent reproduced up to this day depending on the rarity of the malady and the novelty of the treatment. The cutting edge of medicine is quite incomprehensible. Doctors too, besides the profession’s notorious struggle with the ‘god complex’, are likely to redirect the patients’ faith back to them personally in certain situations by virtue of the phenomenon of specialization. The more that unique expertise in a particular problem is recognized to be in the hands of only a few, or only a single doctor, the more likely a person is to fixate on the doctor and cut out Hashem.

Despite this, R. Yosef Caro establishes in the Shulchan Aruch (Y.D. 336:1) the halachic status of medicine as permitted, and in fact a mitzvah that carries with it severe culpability if neglected. The most amazing detail about this halacha is that its formulation is a direct quote from the Ramban!

In his treatise on the laws of mourning, Toras Haadam, the Ramban does once again describe the compromise of man’s ideal state in the history of medicine, but he concentrates much more on the current reality of a true and important obligation to practice medicine. Going beyond a begrudging Torah permission to practice, he says “to restrain oneself is to spill blood.” Not only that, he too explains that vis-a-vis the patient, “his body is lost and the Torah says ‘return it to him.’” So now the Ramban provides the mitzva of medicine with the backing of several Torah sources, including that which the Rambam used.

So ultimately it is the belief of all the responsible authorities that medicine be deferred to and practiced. Yet the initial comments of the Ramban must still ring in our minds as a call to diligence in assessing our spiritual state.

A religious individual faced with the trials of sickness is likely to find the pull in one of these two directions very strong. To deal with the daily rigors of assessment and treatment in the hands of aloof, yet powerful personalities could be frightening, awe inspiring and literally distracting from remembering that “I am God your healer.” (Shemot 15:26) Or it might inspire complete rejection of the medical establishment in order to seek one’s greatest spiritual actualization in calling directly to Hashem. In fact, the challenge is to recognize the necessity of human intervention imposed by reality and yet maintain a supreme focus of the heart on Hashem as the true master of destinies.

That is, until we merit the state that the Ramban describes in those original comments in Vayikra where, “Israel being complete and great will not have their issues directed naturally at all, not in their bodies, not in their land, not in their assembly and not with an individual from them. For Hashem will bless their bread and their water and remove sickness from their presence until they have no need for a doctor or to guard any of the ways of medicine at all.” So should it be His will speedily in our days.

On Wednesday night, March 12th, Yeshiva University will be honoring Rabbi Brovender with an honorary doctorate, marking his 40+ years of achievement and innovation in Torah education in Israel.

The Academic Convocation begins at 7:30 PM at the Jerusalem Renaissance Hotel. You can learn more details about this event at: www.yu.edu/israelweek. You can RSVP by contacting Yeshiva University at 02-531-3002.